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A Trial Judge’s Reading Blog

HOW IS AN OFFER OF COMPENSATION BY AN OFFENDER AND THE VIEWS OF THE VICTIM BE CONSIDERED IN IMPOSING SENTENCE?

In D.P.P. v. Duffy, [2023] IESC 1, January 19, 2023, the accused pleaded guilty to the offence of causing serious harm, contrary to section 4 of the Non-Fatal Offences Against the Person Act 1997.  He had punched a person he did not know, rendering the victim unconscious. The victim suffered significant injuries which were life altering.

Prior to the sentence hearing, the accused wrote a letter of apology to the victim and offered him a €5,000, which the victim accepted.  The accused also offered to pay an additional €10,000, if left at liberty to earn it.

The sentencing judge imposed a period of four years imprisonment, with the entirety of the sentence being suspended on certain conditions, including payment of compensation to the victim.  After sentence was imposed, the offender gave the sum of €10,000 to the victim.

On appeal, the Irish Court of Appeal quashed the sentence, and imposed a sentence of four years of imprisonment with the last three years suspended.  An appeal was taken to the Supreme Court of Ireland.

The Supreme Court indicated that the “issues raised in the appeal concern the relevance of, and weight to be attached to, firstly, the views of the victim of an offence as to sentence and, secondly, an offer of financial compensation by the accused” (at paragraph 2).  The appeal was dismissed.

The Views of the Victim:

At paragraph 40:

The variability of the potential views of victims to what they may perceive as the appropriate outcome of the sentencing outcome is one important reason why the law in general could not allow those views to be a dominant feature in the administration of justice by the sentencing judge. The statement by Geoghegan J. in R. O’D. is clear -the court cannot take into account the belief of a victim that the offender should be dealt with harshly. By the same token, it could not be swayed by a victim who believes that no offender should be imprisoned. However, a victim may put forward an ad misericordiam plea for leniency, which will be taken into account if based on appropriate grounds.

The Payment of Compensation:

At paragraph 80:

A voluntary offer is, therefore, a relevant mitigatory factor in all cases, to be considered as part of the relevant personal circumstances of the offender. However, it is essential to realise that acceptance of compensation does not preclude the imposition of a custodial sentence. Otherwise, there is a risk of undermining the constitutional principle of equality before the law by implying that a person with means can “buy” a lighter sentence. It must therefore be accepted that some cases are simply too serious, in that the gravity of the harm caused is so significant, that the acceptance of responsibility, remorse and rehabilitation cannot outweigh the need for a sentence of imprisonment.

In a concurring opinion, Justice Charleton also considered these issues.

The Views of the Victim:

At paragraphs 4, 16 and 17:

The victim’s voice needs to be allowed to speak. That is not simply through a victim impact statement admitted through s 5 of the Criminal Justice Act 1993, as amended by s 31 of the Criminal Justice (Victims of Crime) Act 2017. While that process is a central part of sentencing and an entitlement for victims of violence, it is not enough. The victim truly speaks when the courts have shrewd and objective regard to the violation of their human rights through the actions of the perpetrator. While a dreadful wrong has been done both to them and to the social contract through violence, the task of the court is to administer justice. That is not an aspect of private vengeance but the marking of such an offence by an appropriate sentence through a proper consideration of what has been done to them and the degree of wrong engaged by the perpetrator.

As a matter of principle, little weight can be attached to such a pronouncement. The constitutional mandate is not changed. To a degree, the victim may feel that his or her voice may be more represented in the overall process where regard is had to what victims have to say, for good or ill. That is why, whether as a statutorily mandated process or through the presentation of evidence as to loss in the prosecution evidence, a more sagacious appraisal may be made of the case and assistance provided to the judge in arriving at a just sentence. Judges are persons of experience and will be aware that families often split in the context of sexual assault or incest allegations, that communities may support victims or lurch instead into the worst side of human nature. That is why the nature of justice is detached and objective and a victim’s views, for leniency or for condign punishment are not to supplant judicial analysis.

But, it follows that if victims’ views as to how they have suffered are rightly to be heard, then it may be of relevance to sentencing that there has been a recovery or that people have put the violation of their person into a non-central space in their lives. Even that cannot be a definitive factor and is no more than an influence. As to what sentence victims might like one way or the other should really form no part of our system.